This blog, Criminal HIV Transmission, a collection of published news stories, opinion, and resources about so-called 'HIV crimes', has now been incorporated into the new HIV Justice Network website, and will not be updated as of November 15th 2012.
For more information about the HIV Justice Network, please visit http://www.hivjustice.net

Sunday, 29 November 2009

A 34 year-old HIV-positive New Zealand citizen originally from the Democratic Republic of Congo has been sentenced to three-and-a-half years in prison for grievous bodily harm with a concurrent six months for criminal nuisance. The charges stemmed from not disclosing his HIV status before having unprotected sex with an Auckland woman, who is now HIV-positive.

Notably, the Sunday Star-Times article published today which reports the man's sentencing does not mention any identifying characteristics of either complainant (which is usual) or defendant (which is rare outside of the Netherlands). It is possible that since the earlier report states they had a child together, this is for the protection of the child.

The man and woman cannot be identified and other details about their relationship and where they live have also been suppressed.

What is also interesting about the article is that it includes details from the sentencing notes of Judge L Moore of Waitakere District Court which provides some insight into how little the criminal justice system cares why someone living with HIV has not disclosed their condition to their long-term sexual partner.

[T] he man insisted he did not have HIV even after his girlfriend noticed a letter from the infectious diseases centre, a nurse spoke to her about it, and one of his former partners sent her a warning text message. He continued to deny having HIV after the girlfriend discovered she had been infected...

"You blatantly lied to this trusting woman so that you could continue to have unprotected sex with her, knowing full well that by doing so, you were putting her at risk of a terrible outcome," [Judge Moore told the man]. You cared for her so little that you were prepared to gratify yourself at a risk to her life. In a way, the fact that this was a long-term relationship, the fact that this woman loved and trusted you, makes it far worse than if it were just a casual fling with somebody who was just out for a bit of sexual adventure. The breach of trust here is very great."

[...]

The man was going through a difficult time at that point [of his 2005 diagnosis], the notes say, as his marriage (which had produced two children) had come to an end. The man moved in with his victim as a boarder but their relationship became physical and they were together for at least two years.

This was the first long-term relationship the woman had been in, Judge Moore said. It seems the couple used condoms for a time before the woman went on the contraceptive pill. From that point they had unprotected sex, which the man preferred.

This man was in serious – and I mean serious – denial, and yet the court imagines that the man "blatantly lied to this trusting woman" for no other reason than to "continue to have unprotected sex with her." Since there is no transcript of the trial, or reporting of whether the man gave testimony or an explanation for his behaviour, I can only speculate that his non-disclosure was not solely to continue having unprotected sex.

"...lack of disclosure has been described legally as fraud, criminal negligence, criminal nuisance, and many other charges in additional jurisdictions. However, these charges assume that everyone can disclose their HIV status at the time of every sexual act. Numerous recent studies demonstrate that there are many valid cultural reasons why individuals do not disclose their HIV status, including fear of domestic violence, fear of familial or partner abondment, and community rejection. These real impacts make disclosure of one's status nearly impossible for many, particularly for newly diagnosed individuals who are already trying to absorb the shock of their possible death. For some individuals it is likely that nondisclosure was tied to denial of HIV status and what the implications of that status might mean in terms of safe sex practices."

Disclosing that you are HIV-positive is not an easy task. It requires coming to terms with your own diagnosis and accepting it. Then it requires exposing one’s own fears and concerns and the ability to express one’s feelings. It is a task that requires a degree of trust that the response will not be negative or stigmatising (itself a difficult task since HIV-related stigma is also often internalised). Sharing this type of highly personal information also requires that a certain expectation of confidentiality or discretion can be relied upon. For many people HIV disclosure is not an event or a one-time conversation. It is a process that takes time and constant communication.

It is tragic that a case like this resulted in an HIV-positive diagnosis for the man's partner and a prison sentence for the man. If only he had had more support from his HIV clinic – which knew of his mental health difficulties – perhaps both of these could have been avoided.

But how dare I, if this is my approach and am infected, blame my partner – how dare I argue that simply because he knew his HIV+ status, he is the one who was at fault in any socially meaningful sense? I dare, because the law allows me to, because the law ignores my risk-taking, my irresponsibility and legitimates my gullibility. I dare, because in law, knowledge operates solely and narrowly as a basis for determining the fault of the person who is (in legal terms) responsible for causing the harm."

New Zealand: African migrant sentenced to three-and-a-half years for HIV transmission

A 34 year-old HIV-positive New Zealand citizen originally from the Democratic Republic of Congo has been sentenced to three-and-a-half years in prison for grievous bodily harm with a concurrent six months for criminal nuisance. The charges stemmed from not disclosing his HIV status before having unprotected sex with an Auckland woman, who is now HIV-positive.

Notably, the Sunday Star-Times article published today which reports the man's sentencing does not mention any identifying characteristics of either complainant (which is usual) or defendant (which is rare outside of the Netherlands). It is possible that since the earlier report states they had a child together, this is for the protection of the child.

The man and woman cannot be identified and other details about their relationship and where they live have also been suppressed.

What is also interesting about the article is that it includes details from the sentencing notes of Judge L Moore of Waitakere District Court which provides some insight into how little the criminal justice system cares why someone living with HIV has not disclosed their condition to their long-term sexual partner.

[T] he man insisted he did not have HIV even after his girlfriend noticed a letter from the infectious diseases centre, a nurse spoke to her about it, and one of his former partners sent her a warning text message. He continued to deny having HIV after the girlfriend discovered she had been infected...

"You blatantly lied to this trusting woman so that you could continue to have unprotected sex with her, knowing full well that by doing so, you were putting her at risk of a terrible outcome," [Judge Moore told the man]. You cared for her so little that you were prepared to gratify yourself at a risk to her life. In a way, the fact that this was a long-term relationship, the fact that this woman loved and trusted you, makes it far worse than if it were just a casual fling with somebody who was just out for a bit of sexual adventure. The breach of trust here is very great."

[...]

The man was going through a difficult time at that point [of his 2005 diagnosis], the notes say, as his marriage (which had produced two children) had come to an end. The man moved in with his victim as a boarder but their relationship became physical and they were together for at least two years.

This was the first long-term relationship the woman had been in, Judge Moore said. It seems the couple used condoms for a time before the woman went on the contraceptive pill. From that point they had unprotected sex, which the man preferred.

This man was in serious – and I mean serious – denial, and yet the court imagines that the man "blatantly lied to this trusting woman" for no other reason than to "continue to have unprotected sex with her." Since there is no transcript of the trial, or reporting of whether the man gave testimony or an explanation for his behaviour, I can only speculate that his non-disclosure was not solely to continue having unprotected sex.

"...lack of disclosure has been described legally as fraud, criminal negligence, criminal nuisance, and many other charges in additional jurisdictions. However, these charges assume that everyone can disclose their HIV status at the time of every sexual act. Numerous recent studies demonstrate that there are many valid cultural reasons why individuals do not disclose their HIV status, including fear of domestic violence, fear of familial or partner abondment, and community rejection. These real impacts make disclosure of one's status nearly impossible for many, particularly for newly diagnosed individuals who are already trying to absorb the shock of their possible death. For some individuals it is likely that nondisclosure was tied to denial of HIV status and what the implications of that status might mean in terms of safe sex practices."

Disclosing that you are HIV-positive is not an easy task. It requires coming to terms with your own diagnosis and accepting it. Then it requires exposing one’s own fears and concerns and the ability to express one’s feelings. It is a task that requires a degree of trust that the response will not be negative or stigmatising (itself a difficult task since HIV-related stigma is also often internalised). Sharing this type of highly personal information also requires that a certain expectation of confidentiality or discretion can be relied upon. For many people HIV disclosure is not an event or a one-time conversation. It is a process that takes time and constant communication.

It is tragic that a case like this resulted in an HIV-positive diagnosis for the man's partner and a prison sentence for the man. If only he had had more support from his HIV clinic – which knew of his mental health difficulties – perhaps both of these could have been avoided.

But how dare I, if this is my approach and am infected, blame my partner – how dare I argue that simply because he knew his HIV+ status, he is the one who was at fault in any socially meaningful sense? I dare, because the law allows me to, because the law ignores my risk-taking, my irresponsibility and legitimates my gullibility. I dare, because in law, knowledge operates solely and narrowly as a basis for determining the fault of the person who is (in legal terms) responsible for causing the harm."

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About this blog

This blog is now incorporated into new HIV Justice Network website which is intended to be a global information and advocacy hub for individuals and organisations working to end the inappropriate use of the criminal law to regulate and punish people living with HIV. There you will find the latest news and cases, searchable by date, country, and case type, plus all kinds of advocacy resources (including video). The information on the website is also classified by 25 topics, under six headings: Advocacy; Alternatives; Impact; Law Enforcement; Laws and Policies; and Science.

The new HIV Justice Network website incorporates all the posts from my blog, Criminal HIV Transmission, which I began in 2007. Little did I know at the time that it would become an important global resource, filling a much-needed gap by capturing what is happening in real time. It was only when I attended AIDS 2008 in Mexico City, and discovered how many people knew of me and my work, that I realised how useful a resource it had become for advocates, researchers, lawyers and others from all over the world.

Knowing that the blog served as an international information and advocacy hub placed enormous pressure on my time and personal resources. Until the beginning of 2012, the blog and its associated advocacy work received no funding – save the few wonderful individuals who donated via Paypal and a small grant from IPPF (thank you!). So I’m very grateful to The Monument Trust for its generous support which has allowed me to sustain, develop and expand the blog into the HIV Justice Network. I’d also like to thank Kieran McCann and Thomas Paterson from NAM, who designed and developed the site, as well as NAM’s Executive Director, Caspar Thompson, for his support and guidance.

HIV and the Criminal Law

This international resource, HIV and the Criminal Law, which I wrote and edited for NAM, is available as an A5 book and at www.aidsmap.com/law. To order your copy visit www.aidsmap.com/law, or contact NAM at +44 (0)20 7840 0050, email: info@nam.org.uk If you are based in a low or lower middle income country, as defined by the World Bank, and would like a free copy of this book please contact NAM.

Why Criminalisation Matters

Click on the image above to listen to Sean Strub, Catherine Hanssens, Vanessa Johnson and I discuss why HIV criminalisation in the US is a major issue for public health and human rights. The panel took place in February 2011 as part of the eQuality Thinking virtual convention.

Funders Concerned About AIDS

I delivered the keynote address, 'Combating HIV Criminalization at Home & Abroad', to the annual gathering of US-based HIV funders in Washington DC in December 2010. Video of my presentation is now available. Visit the FCAA website to watch it online.

Criminalisation of HIV Exposure and Transmission: Global Extent, Impact and The Way Forward

This meeting by and for advocates against the criminalisation of HIV nondisclosure, exposure and non-intentional transmission was held on July 18th 2010 prior to AIDS2010 in Vienna and co-organised by the Canadian HIV/AIDS Legal Network, the Global Network of People Living with HIV and NAM.

This poster presented to the XVIII International AIDS Conference in Vienna in July 2010, highlights how the US criminal justice system routinely breaches international human rights standards [click on the image to download an interactive pdf file]